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Thursday, May 26, 2016

State Department IG Finds Hillary Clinton Violated Government Records Act and Refused to Speak to Investigators

By Andrew C. McCarthy

Politico reports that the State Department inspector
general has concluded that Hillary Clinton violated State’s recordkeeping
protocols. The finding is contained in a much anticipated report provided to
Congress today.

Significantly, the report also reveals that Clinton and
her top aides at State — Cheryl Mills, Jake Sullivan, Huma Abedin, and possibly
others — refused to cooperate with the IG’s investigation despite the IG’s
requests that they submit to interviews.

The report is devastating, although it transparently
strains to soften the blow. For example, it concludes that State’s
“longstanding systemic weaknesses” in recordkeeping “go well beyond the tenure
of any one Secretary of State.” Yet, it cannot avoid finding that Clinton’s
misconduct is singular in that she, unlike her predecessors, systematically
used private e-mail for the purpose of evading recordkeeping requirements.

“Secretary Clinton should have preserved any Federal
records she created and received on her personal account by printing and filing
those records with the related files in the Office of the Secretary,” the
report states. By failing to do so, and compounding that dereliction with a
failure to “surrender[] all emails dealing with Department business before
leaving government service,” Clinton, the IG finds, “did not comply with the
Department’s policies.”

This articulation of Mrs. Clinton’s offense is also
sugar-coated. By saying Clinton violated “policies,” the IG avoids concluding
that she violated the law. But the IG adds enough that we can connect the dots
ourselves. The “policies,” he elaborates, “were implemented in accordance with
the Federal Records Act.” To violate the policies — as Shannen Coffin has
explained here at National Review — is to violate the law.

The IG report elucidates that Clinton and her aides knew
this to be the case.

Politico notes: The report states that its findings are based on
interviews with current Secretary of State John Kerry and his predecessors —
Madeleine Albright, Colin Powell and Condoleezza Rice, but that Clinton and her
deputies declined the IG’s requests for interviews.

Cheryl Mills, Jake Sullivan, and Huma Abedin are among
those who did not cooperate with the investigation.

The importance of this goes unstated but we can connect
the dots. When a government official or former government official refuses to
answer questions in a formal government investigation into potential
wrongdoing, this in effect is the assertion of a legal privilege not to speak —
otherwise, there is no valid reason not to cooperate.

So what conceivable legal privilege do Clinton, Mills,
Sullivan, and Abedin have that would allow them to refuse to answer
investigators’ questions? Only one: the Fifth Amendment privilege — i.e., the
refusal to answer on the grounds that truthful responses might be
incriminating.

I foreshadowed this a few days back in a column,
surmising that Ms. Mills must have gotten some form of immunity in exchange for
agreeing to be interviewed by the FBI and federal prosecutors:

Earlier this year, a State Department inspector general
(IG) issued a report regarding the department’s appalling record of
non-compliance with FOIA during Clinton’s tenure. It noted that Mills was well
aware that Clinton’s e-mails circumvented State’s filing system and therefore
were not searched in order to determine whether some were responsive to FOIA
requests.

This was a violation of federal law, which requires each government
agency to undertake a search that is “reasonably calculated to uncover all
relevant documents.” (See Report at p. 8 & n.29 and pp. 14-15.) Mills not
only failed to ensure that such a search was done; she knowingly allowed the
State Department to represent — falsely, it turned out — that it possessed no
responsive documents.

We now know that, when IG investigators attempted to
question Mills to ascertain why she did that, she told them, through her
lawyer, that she refused to speak with them. (See January 27, 2016, letter of
Senate Judiciary Committee chairman Charles Grassley (R., Iowa) to Secretary of
State John F. Kerry.)

She had good reason to take that position: Obstructing an
agency’s lawful compliance with a FOIA request could constitute a felony. For
present purposes, though, the point is that Mills’s refusal to cooperate with
the State Department IG suggests she has concerns about potential criminal
jeopardy. It thus seems highly unlikely that she consented to an interview by
FBI agents conducting a criminal investigation unless she was given some form
of immunity. . . .

So was Mills given at least qualified immunity in
exchange for answering the FBI’s questions?

The media was abuzz a few months back when it emerged
that Brian Pagliano, the old Clinton hand who was placed on the State
Department payroll to service Hillary’s homebrew server, had been given
immunity for prosecution in exchange for cooperating with the FBI. Why was it
such a big story? Because the conferral of immunity implied that Pagliano
believed he’d be incriminating himself if he cooperated with investigators.

Well . . . what are we to make of the refusal by Clinton,
Mills, Sullivan, and Abedin to cooperate with the Obama State Department IG?

What are we to make of Mrs. Clinton’s public posturing
that of course she is prepared to cooperate — and encourages her subordinates
to cooperate — with government investigators?

And how is a former high government official who
systematically evaded federal records requirements and then refused to
cooperate with a government investigation into that evasion conceivably fit to
be president of the United States?

Hillary Clinton has said for more than a year that her
use of a private email server as Secretary of State violated no federal rules
and posed no security risk. Only the gullible believed that, and now everyone
has proof of her deceptions in a scathing report from State Department
Inspector General Steve Linick.

The report obtained by news outlets Wednesday is
ostensibly an audit of the email practices of five secretaries of State. But
the majority of the report, and the most withering criticism, focuses on Mrs.
Clinton. The IG concludes that the presumptive Democratic presidential nominee
broke federal record-keeping rules, never received permission for her off-grid
server, ignored security concerns raised by other officials, and employed a
staff that flouted the rules with the same disdain she did.

“Secretary Clinton should have preserved any Federal
records she created and received on her personal account by printing and filing
those records with the related files in the Office of the Secretary,” says the
report. “At a minimum, Secretary Clinton should have surrendered all emails
dealing with Department business before leaving government service and, because
she did not do so, she did not comply with the Department’s policies that were
implemented in accordance with the Federal Records Act.”

State still has never received emails from her private
account for the first six weeks after she became Secretary, and the IG notes
that it found (by other means) business-related emails that Mrs. Clinton did
not include among the emails she has turned over.

The report says she has also stonewalled requests to
obtain her server. And “through her counsel, Secretary Clinton declined [the
IG’s] request for an interview.” Former Secretaries Madeleine Albright, Colin
Powell, Condoleezza Rice and current Secretary John Kerry all sat for
interviews.

Mrs. Clinton’s staff abetted her bad practices. The
report says the IG “learned of extensive use of personal email accounts by four
immediate staff members (none of whom responded to the questionnaire). . . .
The material consists of nearly 72,000 pages in hard copy and more than 7.5
gigabytes of electronic data. One of the staff submitted 9,585 emails spanning
January 22, 2009 to February 24, 2013, averaging 9 emails per workday sent on a
personal email account.”

The IG—who had better hire a food-taster—also found that
Mrs. Clinton neither sought nor received permission for her private
communications. The former Secretary also understood the security risks this
posed because she was warned several times.

In March 2011 the Assistant Secretary for Diplomatic
Security sent Mrs. Clinton a memorandum that warned of a “dramatic increase” in
attempts by “cyber actors to compromise the private home e-mail accounts of
senior Department officials,” with an eye toward “technical surveillance and
possible blackmail.”

Following that memo, security staff twice briefed Mrs.
Clinton’s immediate staff on this threat. A June 2011 cable, sent over Mrs.
Clinton’s name to all diplomatic and consular posts, warned of this new threat
to home accounts, as well as the news that Google had reported cyber attacks on
the Gmail accounts of U.S. government employees. Mrs. Clinton and her staff
ignored her own warnings.

One official suggested State set up a stand-alone
computer for Mrs. Clinton in her office to check the Internet and private
email. That never happened. A different official suggested she have two mobile
devices—one for personal use and one with a “State Department email account”
that would “be subject to [Freedom of Information Act] requests.” Her team said
no.

As for Mrs. Clinton’s claim that her private account was
secure, the report cites several instances of techies shutting down her server
due to hacking concerns. “Notification is required when a user suspects
compromise of, among other things, a personally owned device containing
personally identifiable information,” says the report. But the IG says it found
“no evidence” that Mrs. Clinton or her staff filed such reports.

The Clinton campaign is resorting to its familiar
strategy of calling this old news while saying everybody does it because Mr.
Powell also failed to keep records of private email while he was in office.
“GOP will attack HRC because she is running for President, but IG report makes
clear her personal email use was not unique at State Dept,” tweeted Clinton
spokesman Brian Fallon. But Mr. Powell’s use of private email was limited, and
he never set up an unsecure server in his home.

All of this should bear on the FBI’s email probe and
whether Mrs. Clinton understood the security risks she was running. On the IG’s
extensive evidence, she clearly did—and then she lied about it. Voters should
understand that this is precisely the kind of governance Mrs. Clinton would
return to the White House.

About This Blog & the National Black Republican Association

Lieutenant Colonel Frances Rice, United States Army, Retired is a native of Atlanta, Georgia and retired from the Army in 1984 after 20 years of active service. She received a Bachelor of Science degree from Drury College in 1973, a Masters of Business Administration from Golden Gate University in 1976, and a Juris Doctorate degree from the University of California, Hastings College of Law in 1977.
In 2005, she became a co-founder and Chairman of the National Black Republican Association, an organization that is committed to returning African Americans to their Republican Party roots.
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Email contact: NationalBlackRepublican@Gmail.com